Most businesses have certain types of intellectual property (IP) that they need to protect. Sometimes this IP will comprise a core part of their products or services; more commonly IP will be ancillary but nevertheless important to the business, as in the case of branding.
Let’s take a look at the different types of IP and how these can be protected by businesses.
Copyright is an automatic IP right that protects various creations, including:
Owning the copyright to a work prevents others from:
Copyright protection is automatically vested in any creations – there is no registration requirement.
Although it is best practice to ensure that copyright material is marked with the “©” symbol along with the name of the author/creator and the date of creation, this is not necessary.
But it is useful to have evidence of the initial creation of the work. For example, sending a copy of the work to oneself in a sealed recorded delivery envelope – in case there is a dispute in the future.
There are automatic protections of certain designs, notably:
A design must be original and uncommon to be granted automatic protection. It will generally encompass the design of a certain product.
As with copyright, evidence of an unregistered design can be mailed to oneself via sealed recorded delivery.
To gain enhanced IP protections for a design, it needs to be registered with the Intellectual Property Office .
To qualify for registration, the design must be new and original; not be offensive; and not make use of protected emblems or flags.
The protections afforded by a registered design cover its: appearance, physical shape, configuration, and decoration.
The rights granted by a registered design include:
Please note: The functionality of a design cannot be protected as a design right – the way a product works must be protected under patent laws (see below).
The form of IP protection for inventions is known as a patent.
It is possible to obtain a patent for a new invention that has a practical application to any kind of industry. It cannot be purely conceptual, nor can it be merely a modification of an existing invention.
Patent protection affords the owner a right to take legal action against anyone who, in the absence of prior permission, makes or uses, or sells the invention.
Obtaining a patent can take several years, which is why many products are labeled as “patent pending”.
The process of acquiring a patent can be expensive as it requires substantial work. This work is normally carried out by patent attorneys – to ascertain if the invention is actually new and has not already been patented.
There are certain inventions that cannot be patented:
It is generally advisable to speak to a patent attorney when considering obtaining a patent. But it is also possible to apply directly for a patent with the Intellectual Property Office .
A trade mark is a sign which enables a business to more effectively distinguish its products from those of its competitors. It is often a combination of the following elements:
Trade marks are one of the key elements in building a brand and often enhance marketing effectiveness.
Registering a trade mark confers exclusive rights to use the trade mark. Once it has been registered, other businesses will not be allowed to use it unless they get permission.
Obtaining protection with a registered trade mark enables a business to:
To register a trade mark, an application needs to be made to the Intellectual Property Office .
If a business has not registered a trade mark, it may nevertheless be able to take legal action against another business that uses the unregistered trade mark.
However, this will be under the legal principle of “passing off” and it may be more difficult to prove a claim.
To successfully pursue legal recourse in respect of an unregistered trade mark, the business must prove:
Trade secrets, although not an official type of intellectual property, are deserving of some form of protection. Examples of trade secrets are:
It is not possible to register trade secrets. But non-disclosure agreements (NDAs) are routinely used to prevent contractors or business partners from disclosing confidential business information. The unauthorised use of trade secrets can constitute a breach of confidence, in addition to falling foul of the Trade Secret Regulations.
It is worth seeking legal advice on the best ways of protecting any trade secrets or how to deal with any unauthorised disclosures.